Use the force? - An analysis of the effect of the TPN on the Legality of Nuclear Weapons

Abstract: In its Advisory Opinion on the Legality of Nuclear Weapons the ICJ was unable to conclude definitely the legality or illegality of nuclear weapons in international law. Since then the Treaty on the Prohibition of Nuclear Weapons have been signed, with the aim of establishing a total prohibition on nuclear weapons. However, while the Treaty have an honourable aim, the lack of sufficient ratifications hinders it from being binding at this time. Simultaneously the Lotus case prescribe that an explicit prohibition is necessary for the ban on nuclear weapons, making a prohibition dependant on the Treaty. While it can be argued that the Lotus case have played its most central role in international law due to increasing globalisation and interdependence as well as the existence of a more developed international law today, the existence of a binding treaty prohibiting nuclear weapons would be a great step in their overall ban. Today, no general consensus as to the illegality of nuclear weapons can be found in General Assembly resolutions, neither can an explicit authorisation. Furthermore, is there no general practice supporting an illegality, rather the practice of deterrence shows a consistent use and reliance upon nuclear weapons for protection also by non-nuclear-weapon States. Consequently, no basis for an illegality of nuclear weapons due to treaty law can be found at this time. While an emerging opinio juris can be found amongst the States as to their illegality, no uniform State practice support such an opino juris. The existence of the Treaty on the Prohibition of Nuclear Weapons can therefore not be said to have created an absolute ban on nuclear weapons and not to have changed the answer of the Court in its Advisory Opinion.